Citation Nr: 1038394
Decision Date: 10/13/10 Archive Date: 10/22/10
DOCKET NO. 09- 26 974 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg,
Florida
THE ISSUE
Whether new and material evidence has been received to reopen a
service connection claim for a pulmonary disability.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
S. B. Mays, Counsel
INTRODUCTION
The Veteran had active service from February 1954 to April 1974.
In an August 2007 rating decision, the RO essentially denied the
Veteran's service connection claim for a pulmonary disability on
the basis that there was no evidence of a nexus between the
current disability and the reported in-service treatment for
same. The Veteran did not appeal such decision and it therefore
became final.
This matter comes before the Board of Veterans' Appeals (Board)
from a June 2008 rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in St. Petersburg, Florida,
which determined that new and material evidence had been received
to reopen the claim of service connection for a pulmonary
disability, but ultimately denied the claim on the merits.
The Board notes that while the RO reopened the claim, the
requirement of submitting new and material evidence to reopen a
claim is a material legal issue the Board is required to address
on appeal, despite the RO's action. See Jackson v. Principi, 265
F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380, 1383-
1384 (Fed. Cir. 1996). As such, the issue is captioned as above.
Please note this appeal has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. §
7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the appellant if
further action is required.
REMAND
The Veteran asserts that he is entitled to service connection for
a pulmonary disability, which he attributes to in-service
treatment for colds and bronchitis. Unfortunately, despite
references to the Veteran's service treatment records by the RO
and a June 2008 VA examiner, such records are not currently
associated with the claims folder.
Moreover, there is a question as to whether the Veteran had a
lung disability pre-existed service. A June 2008 VA examiner
determined that the Veteran's pulmonary disability pre-existed
his active service. The Veteran, on the other hand, asserts that
his current pulmonary disability had its onset during active
service, and that he never had a pre-existing pulmonary
disability. Every veteran shall be taken to have been in sound
condition when examined, accepted, and enrolled for service,
except as to defects, infirmities, or disorders noted at the time
of examination, acceptance, and enrollment. 38 C.F.R. § 3.304(b)
(2010). A Veteran who served during a period of war is presumed
to be in sound condition when he entered into military service
except for conditions noted on entrance medical examination. 38
U.S.C. § 1111 (West 2002). Where there is "clear and
unmistakable" evidence that the injury or disease claimed pre-
existed service and was not aggravated during service, the
presumption of soundness does not attach. Id.
A preexisting injury or disease will be considered to have been
aggravated by service where there is an increase in disability
during such service, unless there is a specific finding that the
increase in disability is due to the natural progress of the
disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. Clear and
unmistakable evidence (obvious and manifest) is required to rebut
the presumption of aggravation where the pre-service disability
underwent an increase in severity during service. Aggravation may
not be conceded where the disability underwent no increase in
severity during service on the basis of all the evidence of
record pertaining to the manifestations of the disability prior
to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38
C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995).
Without access to the Veteran's service treatment records, to
include the enlistment examination report, the Board is unable to
properly analyze the claim. On remand, therefore, the Board
finds that the Veteran's service treatment records should be
located and re-associated with the claims folder.
The Board also notes that, in May 2007, the Veteran requested
that his treatment records from the Navy Hospital in Orlando
obtained. There is no indication in the record that such request
has been initiated.
Accordingly, the case is REMANDED for the following action:
1. The AMC/RO should attempt to locate the
Veteran's original service treatment
records and associate them with the claims
folder. The records were apparently
misplaced sometime after the June 2008 VA
respiratory examination.
2. If the original service treatment
records cannot be located, the AMC/RO
should attempt to reconstruct the Veteran's
service treatment records, to the extent
possible. All reconstruction efforts,
negative responses, and information
obtained should be associated with the
claims file.
3. The AMC/RO should contact the Veteran
and ask him to provide the dates of
pulmonary treatment at the Naval Hospital
Orlando. If necessary, have the Veteran
submit a completed VA Form 21-4142,
Authorization and Consent to Release
Information to the VA, in order to obtain
any identified records. Any and all
responses, including negative responses
from the Veteran or from any treatment
facility must be associated with the claims
file.
4. Thereafter, the Veteran should be
scheduled for another VA respiratory
examination. The claims folder, to include
a copy of this Remand, must be made
available to and reviewed by the examiner
prior to completion of the examination
report, and the examination report must
reflect that the claims folder was
reviewed. Any indicated studies should be
performed.
Based on a review of the claims file and
the clinical findings of the examination,
the examiner is first requested to offer an
opinion as to whether there is clear and
unmistakable evidence that the Veteran's
current pulmonary disability preexisted
service. If so, a further opinion should
be provided as to whether there is clear
and unmistakable evidence that the disease
or injury did not increase in severity
during service.
However, if the examiner does not find that
there is clear and unmistakable evidence
that the pulmonary disability preexisted
service, the examiner must provide an
opinion as to whether it is at least as
likely as not (e.g., a 50 percent or
greater probability) that the current
pulmonary disability is etiologically
related to service. In rendering this
opinion, the examiner should reconcile the
opinion with the reported in-service
treatment for colds and bronchitis, the
post-service treatment records, the June
2008 VA opinion, and the Veteran's
assertion expressed in his July 2008 notice
of disagreement. The examiner is also
asked to comment on the effect smoking has
on the Veteran's pulmonary disability.
A complete rationale should be provided for
any proffered opinions.
5. Upon completion of the above-requested
development, the AMC/RO should readjudicate
the issue on appeal. All applicable laws
and regulations should be considered. If
any benefits sought on appeal remain
denied, the Veteran and his representative
should be provided with a supplemental
statement of the case and given the
opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in
order. No action is required of the Veteran until he is notified
by the AMC/RO; however, the Veteran is advised that failure to
report for any scheduled examination may result in the denial of
his claim. 38 C.F.R. § 3.655 (2010). The appellant has the
right to submit additional evidence and argument on the matter or
matters the Board has remanded. Kutscherousky v. West, 12 Vet.
App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other appropriate
action must be handled in an expeditious manner. See 38 U.S.C.A.
§§ 5109B, 7112 (West Supp. 2009).
_________________________________________________
MICHAEL MARTIN
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a decision
of the Board on the merits of your appeal. 38 C.F.R.
§ 20.1100(b) (2010).